Citation NR: 9734901
Decision Date: 10/16/97 Archive Date: 10/24/97
DOCKET NO. 95-40 351 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to an increased rating for residuals of the
excision of an osteophyte from the left fourth toe, currently
evaluated as 10 percent disabling.
2. Entitlement to an increased rating for residuals of an
injury of the right big toe and excision of an osteophyte
from the right fourth toe, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
H. Roberts, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1978 to July
1984.
This appeal arises before the Board of Veterans’ Appeals
(Board) from an August 1995 rating decision of the North
Little Rock, Arkansas, Regional Office (RO) of the Department
of Veterans Affairs (VA), which continued noncompensable
ratings for residuals of the excision of an osteophyte from
the left fourth toe, and for residuals of an injury of the
right big toe and excision of an osteophyte from the right
fourth toe. The veteran was granted increased ratings of 10
percent for those disabilities by means of a January 1997
rating decision. However, as that decision does not
constitute a total grant of benefits sought on appeal, the
claims remain before the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his residuals of the excision of an
osteophyte from the left fourth toe, and his residuals of an
injury of the right big toe and excision of an osteophyte
from the right fourth toe, are more severe than currently
evaluated, warranting increased ratings.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran’s claims of entitlement to
increased ratings, greater than 10 percent, for the residuals
of the excision of an osteophyte from the left fourth toe,
and for residuals of an injury of the right big toe and
excision of an osteophyte from the right fourth toe.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s claims has been developed.
2. The veteran’s residuals of the excision of an osteophyte
from the left fourth toe, are productive of no more than a
moderate disability of the foot.
3. The veteran’s residuals of an injury of the right big toe
and excision of an osteophyte from the right fourth toe, are
productive of no more than a moderate disability of the foot.
CONCLUSIONS OF LAW
1. The criteria for a rating greater than 10 percent for
residuals of the excision of an osteophyte from the left
fourth toe, are not met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. Part 4, § 4.71a, Diagnostic Codes 5283, 5284
(1996).
2. The criteria for a rating greater than 10 percent for
residuals of an injury of the right big toe and excision of
an osteophyte from the right fourth toe, are not met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
§ 4.71a, Diagnostic Codes 5283, 5284 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the veteran’s claims are
“well grounded” within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991); that is, he has presented claims that are
plausible. He has not alleged that there are any records of
probative value that may be obtained which have not already
been associated with his claims folder. The Board
accordingly finds that the duty to assist the veteran, as
mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been
satisfied.
The veteran contends that his residuals of the excision of an
osteophyte from the left fourth toe, and his residuals of an
injury of the right big toe and excision of an osteophyte
from the right fourth toe, are more severe than currently
evaluated, warranting increased ratings. After a review of
the record, the Board finds that the veteran’s contentions
are not supported by the evidence, and his claims are denied.
The veteran established service connection for residuals of
the excision of an osteophyte from the left fourth toe, and
for residuals of an injury of the right big toe and excision
of an osteophyte from the right fourth toe by means of a
November 1985 rating decision, which assigned a 10 percent
disability rating for the right toes, and a noncompensable
disability rating for the left toes. The veteran’s rating
was decreased to noncompensable by means of a May 1988 rating
decision. An April 1993 Board decision continued the
noncompensable ratings, but granted a 10 percent rating based
on multiple noncompensable service-connected disabilities.
The noncompensable ratings were continued by an August 1995
rating decision, which is the subject of this appeal. The
veteran was granted increased ratings of 10 percent for those
disabilities by means of a January 1997 rating decision.
However, as that decision does not constitute a total grant
of benefits sought on appeal, the claims remain before the
Board.
The severity of a disability is ascertained, for VA rating
purposes, by application of the criteria set forth in VA’s
Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1996)
(Schedule). The veteran’s disabilities have been evaluated
pursuant to the criteria found in Diagnostic Code 5284 of the
Schedule. 38 C.F.R. § 4.71a (1996). Under those criteria, a
10 percent rating contemplates a moderate injury of the foot.
A 20 percent rating contemplates a moderately severe injury
of the foot. 38 C.F.R. § 4.71a (1996). The terms “mild,”
“moderate,” and “severe” are not defined in the Schedule.
Rather than applying a mechanical formula, the Board must
evaluate all of the evidence to the end that its decisions
are “equitable and just.” 38 C.F.R. § 4.6 (1996). It should
also be noted that use of terminology such as “mild” or
“moderate” by VA examiners and others, although an element of
evidence to be considered by the Board, is not dispositive of
an issue. All evidence must be evaluated in arriving at a
decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6
(1996).
A March 1994 VA medical report shows that the veteran was
seen for plantar warts and complained of pain. The veteran
worked on his feet all day. Objective examination found
intractable plantar keratosis of the left fourth and fifth
and right fourth toes. X-rays showed old osteotomies at the
fourth toes bilaterally. The examiner provided an assessment
of intractable plantar keratosis, and prescribed inlays.
A June 1995 VA examination found that there were sore
calluses bilaterally post surgery. The veteran complained of
calluses and pain. The examiner found that the scars on the
dorsum were healed. Skin was within normal limits except for
bilateral 4/5 metatarsal head callus. The examiner noted
that the veteran had congenital flat feet and low arches. X-
rays showed a healed distal metatarsal shaft surgery which
appeared to be well aligned. The examiner provided an
assessment of a deep plantar callus bilaterally of the fourth
and fifth metatarsal heads secondary to the structure of the
veteran’s flat feet. The examiner opined that the surgery
was well within normal limits for status post surgery. The
examiner stated that he reduced the calluses and recommended
better shoes.
A December 1996 VA examination found that the veteran was
wearing a tennis shoe. He walked with a halting type gait
and complained of pain in his feet when he walked.
Examination of the right foot revealed a deformity of the
right great toe nail with a possible fungus infection. The
foot was mildly pronated when viewed from the back. There
was a scar over the fourth metatarsal phalangeal
articulation, dorsally, that measured approximately 3.5
inches to 4 inches in length that was well-healed. The toe
was in an extended position in weight bearing and appeared to
have good relationship with the walking surface. He had some
hypesthesia along the dorsum of the fourth toe in the
vicinity of the surgical excision. On the plantar aspect of
the foot, there was a callosity present on the plantar
surface overlying the fourth as well as the fifth metatarsal.
The areas were quite firm and the veteran withdrew vigorously
when they were lightly palpated. The left foot was in
pronation, perhaps to a lesser degree than the right in the
standing position. The fourth toe of the left foot was in a
flexed position at the proximal interphalangeal articulation.
It was fixed at about 30 degrees in a claw position. There
was no callosity on the tip of that toe. The veteran had a
hallux valgus of approximately 20 degrees. There was a scar
present along the dorsal aspect of the fourth toe which was
well-healed. X-rays revealed the right foot hallux valgus of
approximately 15 degrees. There was osteophyte formation
that was quite early at the head of the great toe metatarsal
medially and one along the base of the great toe phalanx in
the distal segment. An alteration, possibly due to a
metatarsal osteotomy was noted in the distal third of the
fourth metatarsal neck area. The joint surfaces of the
phalanges appeared undisturbed. The clawing of the fourth
toe could be seen making the interphalangeal articulation
prominent. There were well-developed sesamoids in the short
flexors of the feet. The left foot showed a similar degree
of hallux valgus. There was no exostosis in the metatarsal
head area of the great toe, but an early one along the medial
base of the distal phalanx. The fourth metatarsal showed the
results of possibly an osteotomy in the area with good
healing. The interphalangeal joints appeared undisturbed.
There was no claw deformity in the lateral standing view.
The examiner provided an impression that the metatarsal
osteotomy of the fourth bilateral toe resulted in a claw toe
deformity of the fourth right toe with bilateral plantar
callosities due to atrophic fat pads. The examiner provided
a comment that it was difficult to assess the degree of pain
that the veteran was having. The examiner opined that
ordinarily, the veteran’s type of problem in almost any
occupation could be solved by the use of supportive shoe, and
if necessary, implants.
The Board finds that a moderately severe disability of the
foot is not shown, and that increased ratings are not
warranted. The evidence shows calluses around the fourth
toes of both feet, and fourth toe claw toes. The evidence
also shows right foot hallux valgus. However, the level of
disability resulting from the veteran’s symptomatology does
not rise to the level contemplated by the rating schedule as
moderately severe. The veteran is able to walk, although he
employs a halting gait with complaints of pain. Furthermore,
the Board specifically notes that the most recent examiner
opined that the veteran’s problem could ordinarily, “in
almost any occupation…be solved by the use of a supportive
shoe, and if necessary, implants.” The Board notes that the
veteran has been found to have congenital flat feet, for
which he has not established service connection. The June
1995 examiner indicated that the veteran’s residuals of
surgery, for which he has established service connection,
were well within normal limits. Therefore, the Board finds
that the veteran’s disability more nearly approximates the
criteria for a moderate disability of the foot, and that a
moderately severe disability of the foot, which is required
for an increased rating, is not shown to be the result of
either the veteran’s residuals of the excision of an
osteophyte from the left fourth toe, or his residuals of an
injury of the right big toe and excision of an osteophyte
from the right fourth toe.
The evidence shows that the veteran claims pain on motion,
however, there is no evidence of any excess motion, weakened
movement, excess fatigability, or incoordination. The Board
finds that the veteran’s complaints of pain on motion and any
additional loss of function resulting from that pain on
motion are adequately compensated by the 10 percent ratings
awarded based on a moderate disabilities of the foot, and
that the veteran’s complaints of pain are included in
consideration of the veteran’s levels of disability as
moderate.
An increased rating, greater than 10 percent, would also be
available, pursuant to Diagnostic Code 5283, for malunion or
nonunion of the tarsal or metatarsal bones, where the
evidence showed moderately severe malunion or nonunion of the
tarsal or metatarsal bones. 38 C.F.R. § 4.71a (1996).
However, although the evidence shows that osteophytes were
removed from the veteran’s metatarsal bones, the evidence
does not show any malunion or nonunion of the metatarsal
bones, which is required for a rating pursuant to Diagnostic
Code 5283.
Accordingly, the Board finds that the criteria for a rating
greater than 10 percent for residuals of the excision of an
osteophyte from the left fourth toe, are not met, and the
veteran’s claim therefor is denied. The Board further finds
that the criteria for a rating greater than 10 percent for
residuals of an injury of the right big toe and excision of
an osteophyte from the right fourth toe, are not met, and the
veteran’s claim therefor is denied. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. Part 4, § 4.71a, Diagnostic Codes
5283, 5284 (1996).
ORDER
Entitlement to an increased rating, greater than 10 percent,
for residuals of the excision of an osteophyte from the left
fourth toe, is denied. Entitlement to an increased rating,
greater than 10 percent, for residuals of an injury of the
right big toe and excision of an osteophyte from the right
fourth toe, is denied. This appeal is denied in its
entirety.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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